JUSTICE BEATTY: After his conviction for homicide by child abuse[1] was affirmed on direct appeal, Lucas Bailey filed an application for
post-conviction relief (PCR). We granted a petition for a writ of certiorari
to review the denial of PCR. Bailey contends the judge erred in denying PCR as
trial counsel was ineffective in failing to object to supplemental jury
instructions that allowed the jury to convict him for an act that was not
alleged in the indictment. We reverse and remand for a new trial.

I. Factual/Procedural
Background

This case arises from the tragic death of
sixteen-month-old Charles Devon Allen ("Victim"). At the time of his
death, Victim lived with his mother, Amy Hughes, her boyfriend, Bailey, and Victim's
two sisters, who were then five and six years old, respectively.[2]

Around 6:00 p.m. on Thursday, April 26, 2001, Bailey
called 9-1-1 and reported that Victim was not breathing. When Aiken County emergency
personnel arrived, they found Victim lying face down on the bed. The coroner
pronounced Victim dead as his body was "cool to the touch" and rigor
mortis had begun to set in. Based on the history presented by Bailey and
Hughes, investigators initially believed that Victim might have died from an
accidental overdose of cold medications. However, upon examining Victim's
body, the coroner noticed three "circular marks" or "discolorations"
on the child's abdomen.

The next day, Dr. Joel Sexton, a forensic pathologist,
performed an autopsy. Dr. Sexton noted visible bruises on Victim's abdomen.
Upon further examination, he discovered "extensive internal injuries in
the abdominal region and in the head region." Injuries to the intestines
and the mesentery arteries and veins indicated multiple blows had torn the
areas by compression against the spine. As to Victim's head, Dr. Sexton noted
that "there were numerous small round contusions . . . in the front, on
the top of the head, on the right side of the head and in the back," which
resulted in swelling of the brain. According to Dr. Sexton, the contusions
were consistent with a fist or a knuckle-sized object hitting the head. He
believed the head injuries contributed to Victim's death and were consistent
with some of the symptoms exhibited by Victim prior to his death. He explained
that a head injury leads to swelling of the brain, which in turn causes
vomiting, lethargy, a "limp" body, and eyes that "roll
back" into the head.

Ultimately, Dr. Sexton opined the abdominal injuries
were the primary cause of Victim's death. He believed that at least one of the
abdominal injuries had occurred hours before death. He concluded that the
later abdominal injuries could have caused Victim's death within minutes due to
the loss of blood. The cause of death was "listed as blood loss which we
refer to as exsanguination due to laceration of these mesentery arteries and
veins . . . due to blunt force injury to the abdomen due to a beating."
Although Dr. Sexton could not definitively pinpoint Victim's time of death, he
opined that it occurred sometime after 2:30 p.m. on Thursday, April 26, 2001.
Dr. Sexton believed Victim's injuries were inflicted by an adult as a child
would not have had the "force" to cause these injuries. Finally, he
did not believe the cold medications given to Victim prior to his death caused
or contributed to the death.

Law enforcement interviewed Hughes and Bailey. Subsequently,
an Aiken County grand jury indicted Bailey for homicide by child abuse.

At trial, Hughes testified for the State. Hughes
testified that she had worked on the Monday and Tuesday preceding Victim's
death. According to Hughes, Victim was cared for by Bailey on Monday and then
went to daycare on Tuesday. Because Victim had a cold on Wednesday, Hughes
stayed home from her job to care for him. Hughes recalled that she and Victim
went to sleep in the same bed around 8:00 p.m. Around 12:00 or 12:30 a.m.,
Bailey took Victim into the kitchen to feed him. Hughes, who had remained in
bed, heard a "loud noise" coming from the kitchen followed by Victim
crying out. Although Hughes did not get up to check on Victim, she asked
Bailey what had happened, to which Bailey responded, "Nothing." When
Bailey returned to bed around 12:50 a.m., he told Hughes that he had put Victim
in the bed with his sisters.

Hughes stated that her oldest daughter came in the
next morning and reported that Victim had thrown up. According to Hughes,
Bailey got up and when he returned he told Hughes that Victim was fine and that
he had cleaned him up and placed him in his crib. When Hughes checked on
Victim later on Thursday morning, she observed that Victim was unusually quiet
and did not stand up in his crib. After taking her daughter to school, Hughes
returned and gave Victim some medicine for his cold, but Victim was unable to
keep it down. Hughes stayed home from work to care for Victim and called a
friend to bring additional cold medication. Hughes stated that Victim was
unable to keep this medication down and that he was weak and "wasn't
moving." She then took Victim into the bedroom where she laid down with
him and Bailey. When Hughes's mother arrived around noon, Hughes left Victim
with Bailey. While she was talking with her mother, Hughes heard a "loud
sound" from her bedroom. Hughes then asked her daughter to get Victim,
but her daughter reported that Bailey told her "no."

Approximately twenty or thirty minutes later, Hughes's
daughter took Victim out of the bedroom and brought him to Hughes. Hughes
described Victim as "droopy," unable to sit up on his own, and that
his eyes rolled back into his head. Around 2:00 p.m., Hughes's friend returned
with a different cold medication that Victim was able to tolerate. Hughes
testified that Victim fell asleep and Bailey then put him to bed. After she
laid down with Victim for approximately thirty minutes to an hour, she got up and
checked that Victim was breathing normally.

Around 5:00 p.m., Hughes left the home to drive
Bailey's mother to the store. When Hughes returned home around 6:00 or 6:30
p.m., she found emergency personnel at her home. At that time, she was
informed that Victim was dead. Hughes ultimately claimed that Bailey had
struck Victim, resulting in his death.

During his testimony, Bailey adamantly denied hitting
Victim or causing his death. Although Bailey recounted essentially the same
timeline as Hughes, he claimed that he and Hughes discussed taking Victim for
medical treatment but decided to see if Victim felt better after taking
medication on Thursday. He further testified that he checked on Victim after
Hughes left on Thursday afternoon and discovered that Victim was not breathing.

In his jury charge, the judge instructed the jurors on
the offense of homicide by child abuse by reading the applicable statutory
language.[3]

Approximately one hour into deliberations, the jury
sent a note to the judge with several questions concerning evidentiary issues.
Additionally, the jury asked "the difference between the indictment and
the last statement on the indictment form"[4] and "whether the neglect has to directly contribute to the death." In
response to the notes, counsel believed that recharging the statute on the
offense of homicide by child abuse would be appropriate.

When the jury returned to the courtroom, the foreman referenced
the last sentence of the indictment and explained that the jury "wanted to
get an understanding of the meaning of the indictment." After the judge
read the last sentence of the indictment, the foreman responded:

Well, the definition was the question we [were] asking
for. Also, our verdict to . . . to say this person did that last statement . .
. you're talking two different . . .

Before the foreman finished
his statement, the judge explained the purpose of the indictment was to
"state the charges with enough specificity so that the defendant knows
what he has to defend against." The judge then re-read the applicable
provisions of the homicide by child abuse statute and gave the jury a printed copy
of the statute.

Approximately thirty minutes
later, the jury sent out another note, stating:

Does the
State have to prove beyond a reasonable doubt: that the defendant caused
the death of the child and does the neglect or abuse have to have caused
the death?

Counsel and the judge debated the meaning of
the jury's question. When the
jury returned to the courtroom, the judge explained that "in this case,
the only allegations are that [the defendant] caused the death of the child by
neglect and abuse," and that under the statute several acts qualified as
"neglect and abuse," but the State was required to prove only one of them.

In
response, the foreman stated:

We see .
. . as a jury, total jury, we see the neglect in the parents, but we fail to
see evidence that Lorenzo struck the child. There was no evidence to us that
Lorenzo struck this child. There was neglect, yes, on both parties, but we
fail to see that - - - and that's written in that document that we didn't see
any evidence. We didn't see any evidence . . . And the definition of your
homicide has a combination of both. I know [its] a part of that definition,
but we fail to see any evidence that he did that.

The judge then instructed the
jury to refer to the language of the homicide by child abuse statute.

Out of the presence of the
jury, defense counsel indicated her concern over the "emphasis on the neglect
to the possible exclusion of the rest of the statute;" however, she
believed the jury understood the judge's explanation.

When the jury returned to the
courtroom, the judge issued supplemental instructions that stated in part:

[I]f you
are distinguishing some acts that you would call abuse and some that you would
call neglect, that's up to you as long as you kind of go by the statute here.
The statute doesn't really . . . It says it can be abuse or neglect, and it
doesn't say which acts might be which, but it says that abuse or neglect is an
act or omission which causes harm.

So if there is an act or omission which causes harm
then that is abuse or neglect, by definition under this statute. Any act which
causes, any act or omission, or failure to act, which causes harm to the
child's health, that would be by this statute abuse or neglect, without getting
into the difference of which is which, it doesn't matter.

The
judge further explained that:

So you
have to find that [the defendant] either did something or failed to do
something . . . that caused the death of the child. Either his doing something
which is an act, or failing to do something which is an omission. And that that
conduct on his part, either the act or the omission, caused the death of this
child.

Moments later, a juror
approached the bench and, in an off-the-record discussion, expressed her
concern to the judge over the definition of the word "caused."[5]
The judge then gave an instruction on proximate cause. In part, the judge
stated: "You must find that the State has convinced you beyond a
reasonable doubt that either an act or failure to act on the part of this
defendant is a proximate cause of the death of this child."

Nine minutes later, the jury
returned with a guilty verdict. The judge denied counsel's motion for a new
trial and sentenced Bailey to twenty-five years' imprisonment.

Subsequently, Bailey filed a timely PCR application. After
a hearing, the PCR judge denied Bailey's application. As to trial counsel's
performance, the PCR judge found, in part, that counsel was not ineffective for
failing to object to certain jury instructions. In so ruling, the PCR judge concluded
that counsel's decision constituted trial strategy and that even if counsel's
performance was deficient, Bailey had not proven prejudice.

II. Discussion

A.

Bailey contends the judge
erred in denying his PCR application as his trial counsel was ineffective in
failing to object to the trial judge's supplemental jury instructions. In
support of this contention, Bailey claims the instructions allowed the jury to
convict him for "an act alternative to the one specified with
particularity in the indictment." Because "the infliction of
physical injuries was the specific act alleged in the indictment," Bailey
asserts the jury was limited to a determination of whether he committed this
act. Based on the foreman's statement that the jury found no evidence that
Bailey struck the child, Bailey claims the jury found "a material variance
between the act alleged in the indictment and the State's proof." Specifically,
Bailey avers the jury convicted him of an unindicted crime as the jury found
evidence of neglect rather than the specifically-alleged acts of abuse. Given that
the judge's erroneous instructions precipitated this result, Bailey asserts his
trial counsel was ineffective in failing to object to these supplemental instructions.

B.

The Sixth
Amendment to the United States Constitution guarantees a defendant the right to
effective assistance of counsel. U.S. Const. amend. VI; Strickland v.
Washington, 466 U.S. 668 (1984); Lomax v. State, 379 S.C. 93, 665
S.E.2d 164 (2008).

This Court will
uphold the findings of the PCR judge when there is any evidence of probative
value to support them, and will reverse the decision of the PCR judge when it
is controlled by an error of law. Suber v.
State, 371 S.C. 554, 558-59, 640 S.E.2d 884, 886 (2007).

C.

As a threshold matter, the
State claims Bailey's issue is not preserved for appellate review given it was
not raised to and ruled upon by the PCR judge. We disagree.

In his PCR application, Bailey characterized the trial
judge's instructions as erroneous and confusing because the jury was misled regarding
the homicide by child abuse statute and the indictment. Additionally, Bailey
argued that trial counsel was ineffective in failing to object to certain
instructions.

During the PCR hearing, Bailey testified that his
trial counsel failed to object to the improper jury instructions. In
explaining this claim, Bailey referenced the trial judge's supplemental
instructions and the judge's discussions with the jury regarding its
questions. Trial counsel admitted that she did not object to these
instructions and contended her decision constituted trial strategy. Finally,
in his written order, the PCR judge addressed Bailey's allegation of
"ineffective assistance of counsel for failing to object to jury
charges."

Based on the foregoing, we find Bailey's argument was
properly preserved for this Court's review. SeeState v. Moore,
357 S.C. 458, 593 S.E.2d 608 (2004) (holding an issue
must be raised to and ruled upon by the trial court to be preserved for appellate
review).

D.

Having found that Bailey's issue is properly before
this Court, we turn to the merits.

"In South Carolina, '[i]t is a rule of universal
observance in administering the criminal law that a defendant must be
convicted, if convicted at all, of the particular offense charged in the bill
of indictment.'" State v. Gunn, 313 S.C. 124, 136, 437 S.E.2d 75,
82 (1993) (quoting State v. Cody, 180 S.C. 417, 423, 186 S.E. 165, 167
(1936)). "A material variance between charge and proof entitles the
defendant to a directed verdict; such a variance is not material if it is not
an element of the offense." Id. (citation omitted); see 41
Am. Jur. 2d Indictments & Informations § 252 (2005) (stating that
one of the two ways an indictment can be improperly modified is through "a
variance, whereby the charging terms of the indictment are left unaltered, but
the evidence offered at trial proves facts materially different from those
alleged in the indictment").

"[W]hile a conviction may be sustained under an
indictment which is defective because it omits essential elements of the
offense, such is not true when the indictment facially charges a complete
offense and the State presents evidence which convicts under a different theory
than that alleged." Thomason v. State, 892 S.W.2d 8, 11 (Tex. Crim.
App. 1994) (citations omitted). "A conviction under the latter
circumstance violates principles of due process . . . because the State has
failed to prove beyond a reasonable doubt every fact necessary to constitute
the crime with which a defendant was charged." Id. (citations
omitted); see 41 Am. Jur. 2d Indictments & Informations § 256
(2005) ("A material variance that violates a defendant's substantial right
to be tried only on charges presented in an indictment constitutes fatal error
and warrants a reversal on an appeal of a judgment of conviction of the offense
not charged in the indictment.").

In a case involving similar facts to the instant case,
the Texas Court of Appeals found error in the trial judge's jury instructions
that permitted the jury to convict the defendant of an act not alleged in the
indictment. Castillo v. State, 7 S.W.3d 253 (Tex. Ct. App. 1999). In Castillo,
the defendant was charged with the felony offense of
intentionally and knowingly causing serious bodily injury to a child and
convicted of the lesser-included offense of reckless injury to a child pursuant
to section 22.04(a)(1) of the Texas Penal Code. Id.; Tex. Penal Code
Ann. § 22.04(a)(1) (1994) ("A person commits an offense if he
intentionally, knowingly, recklessly, or with criminal negligence, by act or
intentionally, knowingly, or recklessly by omission, causes a child . . .
serious bodily injury."). The one-count indictment charging Castillo with
this offense provided that Castillo:

[d]id then and there intentionally and knowingly cause
serious bodily injury to Triston Castillo, a child 14 years or younger by then
and there striking the child with a deadly weapon, to wit: the defendant's
hands or by striking the child's head against a deadly weapon, to wit: a wall
or a floor.

Id. at 255. In prefacing its analysis, the Texas Court
of Appeals noted that "[b]y including a more specific description, the
State undertook the burden of proving the specific allegations to obtain a
conviction." Id.

At trial, the child's mother
testified that the morning the child was taken to the hospital, she was taking
a shower when she heard the child "crying out loudly" while in
Castillo's care. When she went to check on the child, she observed that he was
"in a daze," "seizing," and "limp." Id. at 255. Although Castillo admitted to shaking the child because he was having
difficulty breathing, he expressly denied that the child hit or struck a wall. Id. at 257.

On appeal, Castillo raised
several issues, including an argument that the trial judge egregiously erred by
adding, through a lesser-included offense charge, a theory of prosecution
("shaking") that was not supported by the indictment. Id. at
254. The Texas Court of Appeals agreed with Castillo's argument, finding the
trial court erred in "enlarging" the indictment by adding
"shaking" as an additional manner and means of committing the charged
offense. Id. at 260. In so ruling, the court recognized that a
defendant may only be tried and convicted of the crimes alleged in the
indictment and the State is bound by the theory alleged in the indictment. Id. at 258-59.[6]

In light of its holding, the
court declined to reach Castillo's claim of ineffective assistance of counsel.
The court, however, noted the claim would "loom large on the scene, given
the failure to move for an instructed verdict and to object to the charge which
enlarged the indictment." Id. at 262.

We agree with the reasoning in Castillo and
apply its analysis to the facts of the instant case. We conclude that the
trial judge's instructions improperly "enlarged" the indictment by
instructing the jury that it could convict Bailey of a crime not alleged in the
indictment.

Here, the indictment charging Bailey with homicide by
child abuse specifically alleged that Bailey "inflicted upon [Victim]
physical injuries to his abdomen resulting in exsanguination and consequently
the death of the child." By its express terms, the indictment alleged
that Bailey's "act" resulted in Victim's death. Significantly, it
did not allege that Victim's death was the result of an "omission" on
the part of Bailey.

Thus, the indictment apprised Bailey that he had to
defend only against the allegation that he inflicted the physical injuries
resulting in Victim's death. SeeEvans v. State, 363 S.C. 495,
508, 611 S.E.2d 510, 517 (2005) ("The primary
purposes of an indictment are to put the defendant on notice of what he is
called upon to answer, i.e., to apprise him of the elements of the
offense and to allow him to decide whether to plead guilty or stand trial, and
to enable the circuit court to know what judgment to pronounce if the defendant
is convicted."); State v. Gentry, 363 S.C. 93, 102, 610
S.E.2d 494, 500 (2005) ("The indictment is a notice document.").

A careful review of the jury's questions and the
ensuing discussion with the judge reveals that the jury focused on the terms of
the indictment and recognized the alternative elements in the homicide by child
abuse statute, i.e., an "act" versus an "omission."
The foreman of the jury then stated the jury found "no evidence" that
Bailey struck the Victim.[7]
Based on this statement and the reference to the last line of the indictment,
it is evident the jury was inquiring as to whether a finding of
"neglect" on the part of Bailey was sufficient for a conviction under
the statute.

The judge's supplemental instructions, which were
confusing and contradictory, resulted in the erroneous directive that the jury
could find Bailey guilty of homicide by child abuse if it found an act of
"abuse or neglect." Such an instruction was in direct
contravention of the specific act alleged in the indictment and, thus,
constituted a material variance or a "constructive amendment" to the
indictment.

We find that trial counsel not only failed to object
to these jury instructions, but also acquiesced in the judge's erroneous interpretation.
Thus, counsel's failure to object did not constitute a valid trial strategy. Cf.Padgett v. State, 324 S.C. 22, 484 S.E.2d 101 (1997) (finding trial
counsel's failure to challenge first-degree burglary indictment did not
constitute valid trial strategy where counsel did not recognize the distinction
between a "barn" and a "dwelling" for the purposes of
first-degree burglary).

Having found that trial counsel's performance was
deficient, the question becomes whether Bailey was prejudiced by counsel's
errors.[8]
Because the supplemental instructions created a material variance between the
State's evidence and the allegations in the indictment, we conclude that Bailey
was prejudiced by trial counsel's failure to object as this deficiency undermined
confidence in the outcome of his trial. Accordingly, we hold trial counsel
rendered ineffective assistance. SeeMcKnight v. State, 378 S.C.
33, 48-49, 661 S.E.2d 354, 361-62 (2008) (finding trial counsel rendered
ineffective assistance when she failed to object to the supplemental jury
charge on the measure of criminal intent required for a conviction under the Homicide
by Child Abuse statute; reasoning that the supplemental charge: (1) did not
clarify the particular mental state and served to "further confuse the
jury;" (2) "attained a special significance in the minds of the
jurors;" and (3) was "prejudicial in fact" as the jury returned
a guilty verdict five minutes after the supplemental charge).

III. Conclusion

In conclusion, we find Bailey's issue was preserved
for appellate review as it was raised to and ruled upon by the PCR judge. In
terms of the merits, we hold trial counsel was deficient in failing to object
to the supplemental jury instructions as the judge perpetuated the jury's
confusion that they could convict Bailey of homicide by child abuse based on an
unindicted allegation of neglect. We find that a confluence of the lone specific
allegation of physical abuse in the indictment and the jury's expressed
confusion about the necessity of evidence of physical abuse by Bailey with the insufficient
jury instructions created a structural due process defect that deprived Bailey
of a fair trial. We conclude that Bailey was prejudiced by counsel's deficient
performance. Accordingly, we reverse the order of the PCR judge and remand for
a new trial.

That
LUCAS LORENZO BAILEY did in Aiken County on or about April 26, 2001, commit the
crime of Homicide By Child Abuse in violation of South Carolina Code Ann.
Section 16-3-85, in that the defendant did cause the death of Charles D. Allen,
a child two (2) years of age, while committing child abuse or neglect as
defined by South Carolina Code Section 20-7-490, and the death of said child
occurred under circumstances manifesting an extreme indifference to human life,
in that Lucas Lorenzo Bailey was responsible for the welfare of said child and
the defendant did inflict physical harm to the child, to wit: The defendant
inflicted upon said child physical injuries to his abdomen resulting in
exsanguination and consequently the death of the child.

[5] We take this opportunity to caution the bench
against engaging in off-the-record discussions with members of the jury. Here,
the record does not reveal whether the attorneys were present during the
exchange that culminated in the jury charge regarding proximate cause. Thus,
we are troubled that the decision regarding the jury instruction may have been
made without the judge conferring with the attorneys. Because this was not an
issue raised for our consideration on appeal, we do not address any arguments
challenging the procedure employed by the judge. However, we emphasize that we
do not condone a judge's off-the-record discussion with a juror.

[6] Notably, the court stated in its conclusion that its
decision did not prevent "the State from seeking a new indictment charging
injury to a child and alleging a different manner and means of committing the
offense such as 'shaking,' and trying appellant on the new indictment." Id. at 262.

[7] By his statement, the foreman was conveying the
jury's deliberations as to whether there was "direct evidence" that
Bailey struck Victim. Thus, we believe it would have been prudent and more
appropriate for the trial judge to instruct the jury on "circumstantial
evidence" in order to resolve the jury's confusion.

[8] We reject any contention that the Court of Appeals'
opinion affirming Bailey's conviction negates a finding of prejudice as the
court only considered the evidence in the context of a directed verdict
motion. Although we agree there was sufficient evidence to submit the case to
the jury, the issue in this case requires a consideration of the evidence after the submission of the case to the jury.